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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT: RODNEY T. SARKOVICS AMY E. HIGDON Campbell Kyle Proffitt, LLP Carmel, Indiana

ATTORNEYS FOR APPELLEE: DAVID W. STONE IV Stone Law Office & Legal Research Anderson, Indiana GREGG H. MORELOCK Brand, Davis, Elsea & Morelock Greenfield, Indiana

IN THE COURT OF APPEALS OF INDIANA
CHERI MILLER,1 Appellant/Petitioner-Cross-Appellee, vs. THOMAS PAUL MILLER, Appellee/Respondent-Cross-Appellant. ) ) ) ) ) ) ) ) )

FILED
Dec 23 2008, 8:43 am
of the supreme court, court of appeals and tax court

CLERK

No. 33A01-0802-CV-46

APPEAL FROM THE HENRY SUPERIOR COURT The Honorable Mary G. Willis, Judge Cause No. 33C01-0601-DR-1

December 23, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge
The documents before us contain a discrepancy regarding the spelling of Appellants name. We have chosen to use Cheri, based upon Appellants signature on the preliminary agreement. Appellants App. at 29.
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Case Summary Cheri Miller ("Wife") appeals the trial courts property settlement order entered as part of the dissolution of her marriage to Thomas Paul Miller ("Husband"). Husband crossappeals. We affirm in part, reverse in part, and remand. Issues The parties raise the following issues, which we consolidate, reorder, and restate as follows: I. Did the trial court commit reversible error by failing to put certain findings in proper form? Did the trial court abuse its discretion in its treatment of certain marital assets/liabilities? Did the trial court abuse its discretion in dividing the marital estate unequally? Did the trial court err in finding that Husband had dissipated $125,000 in assets? Did the trial court err in its disposition of the parties 2006 tax refunds? Facts and Procedural History Husband and Wife were married on April 15, 1995. On January 4, 2006, Wife filed a petition for legal separation, and on May 25, 2006, the trial court approved the parties preliminary agreement. Husband filed a petition for dissolution of marriage on June 13, 2006. At the time of the dissolution proceedings, Husbands business, Thomas P. Miller & Associates ("TPMA"), had a $250,000 line of credit with Old National Bank ("Old

II.

III.

IV.

V.

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National"). TPMAs line of credit was completely exhausted prior to the date of the dissolution petition, and the full amount of $250,000 was due and owing to Old National. Husband and Wife had a collateral account with Old National valued at approximately $325,000. On November 10, 2006, Houlihan Valuation Advisors ("Houlihan") completed a business valuation of TPMA, and the report was later admitted at trial by stipulation of the parties. Houlihan valued TPMA at $30,000, taking into account TPMAs liabilities, which included the $250,000 owed to Old National on the line of credit. On May 23, 2007, Wife filed a motion for findings of fact and conclusions thereon. The trial court held a contested hearing on May 23, 2007, and July 9, 2007. On August 31, 2007, the trial court entered its findings of facts and conclusions thereon, dissolving the marriage and dividing the marital property. Wife filed a motion to correct error on September 24, 2007, and Husband filed a motion to correct error on October 1, 2007. The trial court held a hearing on both motions on November 14, 2007, and entered amended findings of fact and conclusions thereon on January 10, 2008. The trial court awarded 57% of the marital estate to Wife and 43% to Husband. Wife appealed, and Husband cross-appealed. Additional facts will be provided as necessary. Discussion and Decision I. Sufficiency of Findings

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Wife requested findings of fact and conclusions thereon. Therefore, we apply a twotiered standard of review. First, we "determine whether evidence supports the findings and then whether the findings support the judgment." Carpenter v. Carpenter, 891 N.E.2d 587, 592 (Ind. Ct. App. 2008). We will reverse only if the findings or judgment are clearly erroneous, meaning that a review of the record "leaves us firmly convinced that a mistake has been made." Id. (citation and quotation marks omitted). On cross-appeal, Husband contends that the trial court erred by entering as findings of fact the mere recitation of a witnesss testimony. Statements that a certain witness "testified that ..." are not findings of fact. Parks v. Delaware County Dep't of Child Servs., 862 N.E.2d 1275, 1279 (Ind. Ct. App. 2007). Rather, "a finding of fact must indicate, not what someone said is true, but what is determined to be true, for that is the trier of facts duty." Id. (citation and quotation marks omitted). Thus, the "trier of fact must adopt the testimony of the witness before the ,,finding may be considered a finding of fact." Id. (citation and quotation marks omitted). Here, the trial court entered extensive findings. Of the seventy-six findings,

approximately twenty are mere recitations of witness testimony. However, "the inclusion of statements that are merely recitation of testimony is not harmful error and, instead, should be considered as mere surplusage." Id. (citing Perez v. U.S. Steel Corp., 426 N.E.2d 29, 33 (Ind. 1981)). We also note that the order states, "The Court finds that any Finding of Fact which may be deemed a Conclusion of Law shall be deemed as such, and any Conclusion of Law which may be deemed a Finding of Fact shall be deemed as such." Appellants App. at 24.

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Our review of the trial courts conclusions indicates that they do not contain any of the same problematic language; moreover, they are sufficiently specific to operate as findings. As such, any error in the form of the findings is harmless. II. Treatment of Certain Marital Property Both Wife and Husband contend that the trial court abused its discretion in its treatment of certain property in the marital estate. Wife argues that the trial court double counted a $250,000 debt. Husband argues on cross-appeal that the trial court erred in including a $325,000 collateral account on his list of assets. "The division and valuation of marital assets is a matter within the sound discretion of the trial court." England v. England, 865 N.E.2d 644, 648 (Ind. Ct. App. 2007), trans. denied. "The party challenging the trial courts property division must overcome a strong presumption that the court complied with the statute and considered the evidence on each of the statutory factors." Id. On review, we neither reweigh evidence nor judge witness credibility, and we will consider only the evidence most favorable to the trial courts disposition of the marital property. Id. An abuse of discretion occurs if the trial courts decision is clearly against the logic and effect of the facts and circumstances before it. Dillard v. Dillard, 889 N.E.2d 28, 33 (Ind. Ct. App. 2008). At the outset, we address Husbands argument that Wife has waived her right to appeal this issue due to her decision to withdraw part of her award from the proceeds of the sale of the marital residence. He cites Indiana Code Section 34-56-1-2, which states, "The party obtaining a judgment shall not take an appeal after receiving any money paid or collected on a judgment." Wife requested and received $50,000 from escrow funds on

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October 12, 2007. Tr. at 516. Because Wifes withdrawal occurred after the date of judgment but before she filed her motion to correct error, Husband asserts that she is barred from seeking a modification of the property division order. Our supreme court offered an in-depth explanation of Indiana Code Section 34-56-1-2 in Indiana & Michigan Electric Co. v. Louck, 243 Ind. 17, 181 N.E.2d 855 (1962): This statute is merely declaratory of the common-law rule, which holds that a party cannot accept the benefits of a decision and yet claim it is erroneous. The basis for such a principle is that the law does not permit such inconsistent positions to be taken. One cannot affirm and deny the same thing. Or, as some courts have said, the party is estopped to deny the validity of a proceeding which he has approved. It follows, however, that where no inconsistency in the position taken exists, the general rule is not applicable. An acceptance of an amount to which the acceptee is entitled in any event, does not estop him from appealing or claiming error in the judgment, since there is no inconsistency in such a position. 4 C.J.S. Appeal and Error

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